O'Driscoll v Hurley and Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 14 June 2016
• Neutral Citation: [2016] IESC 32
• Court: Supreme Court
• Docket Number: [Appeal No: S: AP: IE: 2015: 000044]
• Date: 14 June 2016

Denham C.J.

O'Donnell J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

O'Malley J.

BETWEEN

MICHAEL O'DRISCOLL, A MINOR (SUING BY HIS MOTHER AND NEXT FRIEND BREDA O'DRISCOLL)

PLAINTIFF/APPELLANT

AND

MICHAEL HURLEY

AND

HEALTH SERVICE EXECUTIVE

DEFENDANTS/RESPONDENTS

[2016] IESC 32

Dunne J.

[Appeal No: S: AP: IE: 2015: 000044]

THE SUPREME COURT

Practice & procedure – Judiciary – Bias – Allegation of objective bias – Whether judge hearing appeal should have recused herself

Facts: The appellant had brought a claim in respect of personal injuries alleged to have been suffered during surgery. The matter came on appeal to the Court of Appeal on the matter of quantum, but the Court of Appeal had dismissed the appeal. The appellant now sought to challenge that dismissal, alleging that Irvine J should have recused herself from the hearing as she had been involved with solicitors and bodies dealing with medical negligence matters.

Held by Ms Justice Dunne, the other Justices concurring, that the appeal would be dismissed. Having considered the relevant case law on the test for objective or perceived bias, the Court was satisfied that Irvine J?s conduct in not recusing herself was correct and that a reasonable person could not apprehend objective bias in her engagements with medical negligence practitioners. Goode Concrete v. CRH Plc & Ors [2015] 2 ILRM 289, O'Callaghan v Mahon [2008] 2 IR 514 and Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 IR 412 considered.

Judgment of Ms. Justice Dunne delivered on the 14th day of June 2016

1 The appellant in this matter was born on the 10th March, 1997. On the 28th January, 2006, the appellant was admitted to St. Luke's Hospital in Kilkenny and underwent a laparoscopic appendectomy on that date. During the course of the surgery, an injury was occasioned to the appellant's bladder which caused it to leak urine into his abdomen. The appellant brought proceedings suing by his mother and next friend in respect of the damage suffered as a result of the injury to his bladder and the consequences of that injury. Following a hearing before the High Court, (O'Neill J.) the appellant was awarded a sum of ?50,000 by way of general damages in respect of personal injuries sustained by him as a result of the clinical negligence of the surgeon attached to Kilkenny Regional Hospital. The hearing before the High Court was confined to an assessment of damages as the question of negligence was not in issue. The appellant appealed that decision to the Court of Appeal on a number of grounds but essentially the complaint was that the award of damages was inadequate.

2 The matter came on for hearing in the Court of Appeal on the 14th May, 2015, the composition of the Court being the President, Ms. Justice Irvine and Mr. Justice Hogan. Judgment was reserved and a judgment was delivered by Irvine J. on the 8th July, 2015 dismissing the appeal.

3 An application for leave to appeal was made on behalf of the appellant to this Court and by a determination dated the 15th December, 2015 leave to appeal to this Court was granted on the issue of a preliminary application made by the applicant to the Court of Appeal that Irvine J. should have recused herself on the grounds of objective bias. The issue certified is ?Whether a judge is disqualified from sitting on a hearing, or on an appeal on the grounds alleged, or any of them??

The grounds of the application

4 After the commencement of the appeal, an application was made on behalf of the appellant that Ms. Justice Irvine should recuse herself from the hearing of the appeal on the grounds of objective bias. The circumstances relied on were as follows:

(1) Irvine J. ?chaired and addressed a private conference run as a promotion by the solicitors on record on behalf of the State Claims Agency defending the said appeal?. The solicitors, Messrs. Hayes, it was stated, specialise in the defence of medical negligence actions.

(2) The judge was pictured on an ?advertisement? on the website of the said solicitors sitting under the said solicitors' name and logo while a senior member of the said firm of solicitors was delivering a speech.

(3) The judge was pictured separately with the head of the State Claims Agency which was defending the appeal.

5 It was contended that as a result of the participation at the said conference by the said judge there was a real possibility of unconscious bias on the part of the judge. It was contended that this was a breach of the European Convention on Human Rights and in particular Article 6.1. The Court of Appeal refused the application that Irvine J. should recuse herself in the circumstances of the case.

The transcript

6 This Court has had the benefit of a transcript of the application made to the Court of Appeal on the application to have Irvine J. recuse herself. From that it would appear that Counsel on behalf of the appellant stated:

?Well it appears that Ms. Justice Irvine chaired and spoke at a private conference run as a promotion by the defendants' solicitors, Messrs. Hayes.?

7 It was stated that they were a leading firm of solicitors specialising in medical defence work. It was pointed out that Ms. Justice Irvine was pictured twice on the website of the defendants' solicitors and the relevant extract from the website was provided to the Court of Appeal. The material on the website stated that: ?Hayes conference calls for reform of clinical negligence litigation?. The judge could be seen sitting under the solicitors' name and logo as a member of the firm was making a speech to the conference. The other photograph of Ms. Justice Irvine was with Mr. Breen of the State Claims Agency and former judge Quirke.

8 The essence of the application was that Ms. Justice Irvine had attended the conference hosted by the solicitors concerned coupled with the fact that Ms. Justice Irvine was chairing the conference, not just attending the conference. In the course of the application to the Court of Appeal, an issue was raised to the effect that a similar case occurred two weeks previously in which no such application had been made. Counsel pointed out that the objection was not one being made by him personally but on instructions. Apparently, the previous situation arose in relation to an appeal on a motion. Counsel indicated that he would not wish to make such an application in relation to a motion. The Court then considered the issue and refused the application and subsequently gave reasons for that refusal in the course of the judgment delivered in this matter.

The Website

9 As indicated, the Court of Appeal was given a copy of the material on the website. The section of the website was headed ?Hayes conference calls for reform of clinical negligence litigation?. There was then the photograph in which Ciarán O'Rorke of Hayes, who is described as a partner and ?head of healthcare?, is pictured addressing the conference. In the background can be seen Ms. Justice Irvine.

10 The website continues by stating as follows:

?Hayes Solicitors hosted a major conference on the need for radical reform of medical negligence litigation in Ireland. The event took place in the Conrad Hotel, Dublin 2 on Thursday, 8th May 2014 and attracted media attention, including an item on the RTE Six One News ? Both plaintiff and defendant stakeholders were present in the invited audience of more than 250, including representatives from hospitals, medical and dental practices and professional bodies, patient advocates, state agencies, insurers and law firms. Speakers shared unique perspectives from their practical experience of working with clinical negligence litigation from their vantage points as defence and plaintiff lawyers, judges and indemnifiers.

11 The conference addressed the widely held view that the Irish system of conducting clinical negligence claims is not fit for purpose. Chairing the conference, Judge Mary Irvine of the High Court set the scene by describing the system of awarding a single lump sum payment in catastrophic injury cases – rather than annual compensation payments over the course of the injured party's life - as ?unjust, ineffective and ? Dickensian?. Practical reforms proposed by the Working Group on Medical Negligence and Periodic Payments, established in 2010 and currently chaired by Judge Irvine, have yet to be introduced. These reforms were outlined in three Working Group reports: Periodic Payment Orders (PPOs) (October 2010), Pre-Action Protocols (March 2012) and Case Management (April 2013).?

12 On the third page of the website, there was a photograph of Ciarán Breen, who was described as the Director of the State Claims Agency and who also addressed the conference, together with Ms. Justice Irvine and Mr. Justice Quirke. It can be seen, therefore, that the complaint at the heart of this appeal is that a judge who sat as a member of the Court of Appeal had chaired and spoken at a private conference hosted by the solicitors for the defendants/respondents in these proceedings, who had been instructed by the State Claims Agency on behalf of the defendants/respondents herein.

The applicable law

13 The parties were not in dispute as to the relevant case law in this area. Both parties identified the decision of this Court in Goode Concrete v. CRH Plc & Ors. [2015] 2 I.L.R.M. 289 as the authority in which the appropriate test was most recently elucidated. In her judgment in that case, Denham C.J. (Clarke J., MacMenamin J. and Dunne J. concurring) described the reasonable person test relating to the issue of bias in the following terms at paragraph 54 of her judgment:

?54. The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in...